Hill, J.
Gervis Bloodworth and Willie Jones were jointly indicted and tried for the murder of Howard F. Underwood. The jury returned a verdict of guilty against both, without recommendation; and they were sentenced to be hanged. They jointly made a motion for new trial on the usual general grounds and thirty-five amended grounds, which was overruled, and they excepted. The'theory of the State, which is supported by evidence, is that, the defendants entered into a conspiracy to take the life *73of Underwood for .the purpose of obtaining his money, and, armed with a shotgun, they hailed him as he was riding along the public highway selling patent medicines, and were permitted by him to get into his automobile and ride. Bloodworth sat on the front seat with Underwood, who was driving'the car, and Jones, with the gun, sat on the right-hand rear fender of the car. Jones did not get inside the car, as the rear space was filled with medicine cases, which Underwood carried for some medicine company he represented, and which he peddled throughout the country near where he lived. When the- car had gone some distance, and as it approached the road which turns off from the Beynolds and Garden "Valley road going to Potterville, near which place the deceased lived, Bloodworth gave the signal (a nod of the head) to Jones to fire, which he did, the entire load of shot striking Underwood near his right ear and ranging 'toward the left eye, killing him instantly. Bloodworth then caught the steering-wheel of the ear while it was still running, and drove about half a mile. The defendants rolled the deceased from the front seat of the car to the rear, and took what money he had, except an amount of small change. They then drove back in the direction from which they had come, and turned from that road'into another leading toward the river. Before reaching the river, the car stuck in the mud and the defendants abandoned it. The homicide occurred on December 3, but the body of the deceased was not discovered until December 5, two days later. When found his hip-pockets were turned inside out, and there was only a small amount of change found on his person, although he was known to eaTry large sums of money. According to the evidence the defendants took the money from the person of Underwood after he was killed, except the small change.
It is insisted by plaintiffs in error, as the death penalty was inflicted on them, that this court should look with great concern upon all of-the alleged errors assigned, to see whether or not they may have influenced the jury in withholding a recommendation to mercy as to either or both of the defendants. It is needless to say that this court has looked, and will ever look, to all alleged errors assigned in bills of exceptions or motions for new trial, and it has done so in this ease. But this court has said that “the jury in the trial of one who is charged with murder, if they find the *74accused guilty, are invested by law with the power of fixing the punishment, by recommendation to life imprisonment. Whether they will so recommend or not is a matter solely in their discretion, which is not limited or confined in any case.” Cohen v. State, 116 Ga. 573 (42 S.E. 781" court="Ga." date_filed="1902-11-13" href="https://app.midpage.ai/document/cohen-v-state-5572115?utm_source=webapp" opinion_id="5572115">42 S. E. 781). The charge of the court in the instant case, with reference to the right of the jury to recommend the defendants to the mercy of the court, is not complained -of, as in the Cohen ease, where the judgment of the lower court was reversed on account of the charge. On this branch of the case the court here charged the jury that “if you did [do] desire that the extreme punishment of the law should not be inflicted upon the defendants, you would have the right to recommend them to the mercy of the court, and in that case the punishment would be imprisonment in the penitentiary for life. In case of a conviction and if you should desire that the extreme penalty of the law should not be inflicted upon the defendants, the form of your verdict would be, ‘We, the jury, find the defendants guilty, and we recommend them to the mercy of the court/ ” It will thus be seen that the court below instructed the jury as to their right to recommend the defendants to the mercy of the court, without any qualification or restriction whatever, which is the law. We have also examined carefully the numerous grounds (35) of the motion for new trial, and find no reversible error in them. And none of the rulings of the court as set out in the motion for new trial could have the effect of modifying the rule given in charge with reference to the right of the jury to recommend the defendants to the mercy of the court, if they saw fit to do so, as did'the charge in the Cohen case, supra.
So far as the general grounds of the motion for new trial are concerned, it is sufficient to say that the evidence, as set out in the foregoing statement of facts, shows this to have been a case of murder without excuse, justification, or mitigation. An old man, plying his usual vocation of selling patent medicines, out of the goodness of his heart had let the defendants ride with him in his automobile, the one beside him, and the other in the rear on the running-board of the car. Without warning to the deceased, one of the defendants gave a sign or signal to the other, who shot the deceased with a shotgun from the rear, causing his instant death. Under these circumstances the jury were fully *75warranted in finding the defendants guilty of murder, without recommendation. It is true they could have recommended mercy had they seen fit to do so, but they did not. With the question of whether capital punishment is ever right (as suggested by one of counsel) we have nothing to do. It is the law of the land, which declares that “the punishment for persons convicted of murder shall be death, fyut may be confinement in the penitentiary for life, . . if the jury trying the case shall so recommend,” etc. • Penal Code, § 63. The jury trying this ease did not recommend the defendants to mercy; and the evidence being sufficient to authorize the verdict, we are powerless to interfere. One of the purposes of the law is to protect human life from the lawless, and those who utterly disregard it and take the lives of their fellow men, without excuse or justification, can not justly complain if their lives are demanded in order to protect the innocent and defenseless. Society can not be_ protected except by the observance and enforcement of the law. And while we as individuáis may sympathize with the unfortunate young men sentenced to death in this case, as officials we are bound to uphold the law, and see that “justice is done, though the heavens iall.”
In Eberhart v. State, 47 Ga. 598, 609, Judge McCay, speaking for the court, well and forcefully said: “It gives us great pain to be compelled,, by our sense of duty to the law and to the public, to affirm this judgment. We have, however, no sympathy with that sickly sentimentality that springs into action whenever a criminal is at length about to suifer for crime. It may be a sign of a tender heart, but it is also a sign of one not under proper regulation. Society demands that crime shall be punished and criminals warned; and the false humanity that starts and shudders when the axe of justice is ready to strike, is a dangerous element for the peace of society. We have had too much of this mercy. It is not true mercy. It only looks to the criminal, but we must insist upon mercy to society, upon justice to the poor woman whose blood cries out against her murderers. That criminals go unpunished is a disgrace to our civilization, and wé have reaped the fruits of it in the frequency with which bloody deeds occur. A stern, unbending, unflinching administration of the penal laws, without regard to position or sex, as it is the highest mark of *76civilization, is also the surest mode to prevent the commission of offenses.” Judgment affirmed.
All the Justices concur.
Russell, C. J., and Atkinson, J., concur in the result.